Nearly 16 months after an orphan works proposal died at the end of the 2005-2006 congressional session, two new proposals have been introduced and are moving rapidly through Congress. Between April and early May, the proposals (one in the House and one in the Senate) were introduced, marked up, and hustled through their respective committees.
Orphan works are those creative works where the copyright owner cannot be identified or located, or it cannot be determined if the work is copyrighted. Any new use of orphan works as part of a new work (an archive of old photos or a website featuring collections of letters) runs the risk of the copyright owner emerging and suing for thousands of dollars for infringement damages. With the web established as a tool for disseminating works that might otherwise be lost to time, Congress recognized the need to resolve the problem.
Copyright Office Report
The proposals emerged after the U.S. Copyright Office published a report in 2006 that identified the problem and proposed a solution. The Copyright Office's proposal required potential users to conduct a "reasonably diligent search" for the owner of works they wished to use. If the potential users were unable to locate the owner, they could then go forward with the new use. In return, if the original copyright owner was subsequently identified and asserted his or her copyright claim, the liability for infringement would be limited to providing reasonable compensation to the owner and giving the owner some rights to restrict further publication of the new work.
The congressional proposals outline a series of events that generally follow the Copyright Office's recommendations, beginning at the point the proposed user wants to use an orphan work and ending if and when the copyright owner emerges and sues the user for copyright infringement.
The first step for those who want to use an orphan work is to conduct a "good faith, qualifying and documented search" for the owner of the copyright before using the work. A "qualifying search" must be "diligent," must use fee-based resources if required, and requires the user to show that he or she followed up on all relevant facts, including any facts uncovered during the search. The proposal would require the Register of Copyright to establish a set of best practices to help in guiding users.
Upon publishing their works, users would also be required to provide attribution (as much as possible) to the owner in their new works. The proposals also request the Register of Copyrights to develop a symbol or notice that must be applied to the new creative work.
The House bill includes a controversial requirement that users of orphan works file a "Notice of Use" that would be archived by the Register of Copyrights. The notice would include a description of the work and how it would be used, the name of the proposed user, a summary of the search, any known information about the owner and/or author of the work, and a certification from the Copyright Office that a qualifying search was conducted in good faith. Users must file a notice under this provision or they will be subject to the full penalties for infringement.
The Dark Archive
This section has been called the "Dark Archive" provision. The American Library Association (ALA) expressed concern that compliance with this requirement will be "burdensome and potentially extremely costly. …